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Precedent Set as Court Orders Gov't to Pay for Medical Pot Instead of Opioids for Worker's Comp

Freehold Township, NJ – In a major victory for medicinal cannabis rights, a New Jersey workers’ compensation judge has ordered a Freehold Township to pay for an injured worker’s medical marijuana, despite an insurance carrier’s objections stemming from the drug’s status Schedule 1 status as a controlled substance under federal law. People will no longer be forced to rely solely on opioids for the treatment of pain.

New Jersey Workers’ Compensation Judge Lionel Simon invoked the necessity of not forcing injured workers onto opiates that are “killing people” as he ordered Freehold Township to pay for a municipal employee’s medical marijuana.

“Quite frankly, this Court is very aware of the . . . the explosion of these narcotics on the streets in the United States in the last decade, the tremendous amounts of death and addiction that are associated with these opioids. If there’s anything criminal here, it’s how these drugs have been force fed to injured people creating addicts.”

The New Jersey Law Journal reported that an attorney for carrier “PMA Group argued that New Jersey’s medical marijuana law is pre-empted by federal law designating it as illegal, and also cited a recent ruling from the Maine Supreme Court holding that an insurance carrier can’t be ordered to pay for marijuana when it is prohibited under federal law.”

Judge Simon said that while both state and federal drug laws were intended to stop the use and distribution of illicit drugs and drug-related crime, he couldn’t understand how covering McNeary’s medical marijuana could make the insurance company complicit in distributing illegal narcotics.

“I don’t think the New Jersey Medical Marijuana Act is in conflict with that. Certainly I don’t understand how a carrier who will never possess, never distribute, never intend to distribute these products, who will merely sign a check into an attorney’s trust account, is in any way complicit with the distribution of illegal narcotics,” he said, according to a transcript.

“What else is important to note here is in this, Mr. McNeary’s case, there is a documented medical need and the concern is that Mr. McNeary is going to become addicted to opioids.”

At issue was whether marijuana’ illegality under the federal Controlled Substance Act precluded Judge Simon from using New Jersey’s Medical Marijuana Act as a predicate for compelling Freehold to pay for McNeary’s medical marijuana. During the hearing, Judge Simon referred to the Maine Supreme Court’s June 14, 2018 ruling in Bourgoin v. Twin Rivers Paper Co., Docket No. WCB-16-433 (2018 WL 2976309) which held, in a 5 to 2 decision, that federal law controlled and that any employer who paid for an employee’s medical marijuana would be “aiding and abetting” a violation of federal law.

Accordingly, the Maine court ruled that Maine’s Medical Use of Marijuana Act “cannot create a state right to commit a federal crime” and therefore cannot compel an employer to pay for an employee’s medical marijuana.

Simon, who subsequently declined to follow the Maine court’s June 14 ruling in Bourgoin v. Twin Rivers Paper — which cited the conflict between Maine’s Medical Use of Marijuana act and federal law in overruling a lower court that had ordered a carrier to pay for medical marijuana for an injured employee — said he’d “welcome” guidance from New Jersey’s Appellate Division or Supreme Court in the form of legal precedence.

“I simply think it’s the right thing to do. And, again, I welcome a reviewing court to tell me I’m right or I’m wrong,” he stated. In the meantime, however, he believed that “it’s time for us, as the Division, of Compensation, to try to get away from these opioids which are killing people and I don’t say that lightly. They are killing people.”

It’s clear that Judge Simon understands that the substantiated risk of addiction and death from opioids is a grave threat to American society. Opioid overdose has been implicated in over 500,000 deaths since 2000. A growing body of scientific research shows a decline in opiate use in states where medical marijuana has been legalized.

In fact, in a study published just this week in the journal Addiction, investigators at the University of California San Diego assessed the relationship between medical cannabis legalization and opioid use among Medicaid enrollees over a period of 21 years (1993 to 2014).

NORML reported that these findings are similar to those of numerous other studies – such as those here, here, and here – finding that medical marijuana regulation is correlated with reductions in overall opioid-related use, drug spending, abuse, hospitalization, and mortality.